How to Avoid a Criminal Record if you Plead Guilty

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If you have been charged with a drug offence, you may face a range of penalties including a good behaviour bond, a community service order, or as a last resort, imprisonment.The type of penalty that you receive will depend on the circumstances of your case, including the type of drug possessed or supplied, the amount of the drug, and other factors such as your age, whether or not you have a criminal record, and your chances of reoffending.

Remember, it’s not the end of the world if you’ve been charged with possession or supply of a drug. In certain situations, you may even be able to avoid a conviction altogether by receiving what is known as a ‘section 10’ order.

If you’ve been charged with a drug offence, it’s highly advisable to get a specialised drug lawyer. Our expert lawyers at Sydney Drug Lawyers will be able to use their knowledge and experience in this field to ensure you get the best possible outcome.

What is a ‘Section 10?’

You can think of a section 10 as a ‘best case scenario’ – while it means that you have been found guilty of the offence, the charges against you will be dismissed and no conviction will be recorded on your criminal record.

Sometimes, having a criminal record will affect your ability to work and travel. Receiving a section 10 is therefore highly desirable as it avoids these negative impacts and allows you to continue living your life without worrying about whether your job or travel plans will be affected. It is also preferable to other penalties, such as a good behaviour bond or community service order, which may impose restrictive conditions that can affect your work and personal life.

It is often thought that you will be more likely to receive a section 10 for minor offences; however they can also be imposed in more serious cases if ‘extenuating factors’ can be demonstrated. In the case of R v Mauger [2012], 32 year-old Oliver James Tama Mauger pleaded guilty to supplying 20 ecstasy pills, as well as possession of 3.1g of cannabis at a music festival. Luckily, the court saw that Mauger was deserving of a second chance due to his age and minimal chances of reoffending, and gave him a section 10.

How can I get a section 10?

To determine whether a section 10 is appropriate, the court will consider the seriousness of the offence, as well as the facts and circumstances of your case and the consequences of recording a conviction.

The court will usually look to see whether any special factors can be shown to demonstrate why a section 10 is appropriate. Factors that the court may take into account include:

Your criminal record (if any);

Your age;

Any mental health conditions that you might have, such as depression;

Your chances of reoffending;

The impact that a criminal record might have on your job or travel plans.

For example, in the case of Mauger, discussed above, the court considered the fact that Mauger was a young professional who had no criminal record, engaged in charity work on a regular basis and was unlikely to reoffend. It was found that, in those circumstances, the impact that recording a conviction would have on his future career prospects outweighed the need for punishment.

There are several steps that you can take to increase your chances of getting a section 10 dismissal. These include:

Providing character references to the court;

Writing a letter of apology;

Engaging in counselling or other programs.

These are discussed in more detail below.

Character references

Character references can be very helpful in increasing your chances of receiving a section 10. They are used to show to the court that you are a person of good character and that the offending was not in your nature.

It is up to you how many references you want to obtain, however it is usually advisable to obtain three. You can get character references from any reputable person who can show that you are a person of good character – examples of suitable persons include employers, religious and community leaders, or long-term friends.

There’s no set formula for a character reference, and ultimately they should be in the referee’s own words, however there is certain information that you can include to make the references more compelling.

GENERAL RULES:

References should be on a letterhead if possible, and they should always be typed. It is extremely important that they are signed and dated.

They should be addressed to ‘The Presiding Magistrate’ (if your matter is being heard in the Local Court), or ‘Your Honour’ if your matter is being heard in another court.

The letter should be honest and truthful as it will be handed up in court to be read by the Magistrate or Judge.

INFORMATION ABOUT THE REFEREE:

The referee should provide some background information about themselves, such as:

What their job title is and how long they’ve been in that role;

Whether they participate in any other community organisations, such as a footy club or a church, or any charity work that they may have done.

Example

My name is John Smith and I have been a site manager with Sydney Builders for 10 years. I am also a weekend coach for the Sydney Under 10’s football club and I participate in the City 2 Surf each year.

INFORMATION ABOUT YOU:

The referee should talk about who you are and your character:

How they know you and how long they’ve known you for;

How often they see you;

Anything positive about your character and personality.

Example

I have known Bob for five years, working alongside him as a site manager. I am responsible for overseeing work done on site, enforcing safety requirements and providing feedback about completed jobs. I generally see Bob five days a week on site. In the time that I have known Bob, he has proved to be a kind, compassionate, helpful and hardworking person.

INFORMATION ABOUT THE OFFENCE:

It is important that the letter contains the following information:

It is very important that the letter states that the person writing the reference is aware of the charges against you, and any previous charges;

That the offending is out of character, and whether you have shown remorse or shame;

Whether you have taken any steps to address the issue (such as counselling or other programs);

Any impact that the offence may have upon you;

Whether and how they can support you.

Example

I have known Bob for five years, working alongside him as a site manager. I am responsible for overseeing work done on site, enforcing safety requirements and providing feedback about completed jobs. I generally see Bob five days a week on site. In the time that I have known Bob, he has proved to be a kind, compassionate, helpful and hardworking person.I am aware that Bob has pleaded guilty to possession of five ecstasy tablets, and that he previously pleaded guilty to possession of marijuana in 2008. I was shocked to hear about this, as Bob has always proved himself to be a responsible, intelligent person, and this is completely out of character.I have spoken to Bob about the offence on several occasions, during which he expressed his sincere remorse and his desire to turn his life around and stop using drugs.

He has already undertaken drug counselling as a result and understands the negative effects that drugs have on our community. He has expressed a desire to put this behind him and move forward.

Bob is also concerned about the impact that the offence will have on his job, as background checks are regularly conducted upon employees, and there is a requirement for workers to be free from criminal convictions.

I know that Sydney Builders will give Bob our full support during this difficult time, and we would be happy to continue his employment in the case that he does not obtain a criminal record.

Remember – this is a guide only and a character reference should always be in the referee’s own words!

Letters of Apology

Writing a letter of apology to the court can also be extremely helpful if you are seeking a section 10.

A letter of apology will show to the court that you are sorry for your actions and that you understand the seriousness of the offence.

Again, the letter should always be in your own words, however some tips for writing a letter of apology include:

Always make sure it is addressed to ‘The Presiding Magistrate’ (if your matter is being heard in the Local Court), or ‘Your Honour’ if your matter is being heard in another court;

They should always be typed (or neatly written), signed and dated.

Explain why you are writing the letter – I have written this letter to express my sincere remorse for my reckless actions in possessing five ecstasy pills on the night of 8 February.

Show that you accept full responsibility for your actions – I accept full responsibility for my actions on the night, which were a result of my own poor decisions.

Show that you understand the negative impacts of drugs upon the community – I understand the negative impact that drugs have on our community and the destructive impact that they have on the lives of others.

Discuss any steps that you have taken since to address your problems and anything that you have learnt from your experiences – I have had time to think about my actions on the night and I have made a decision to stay away from drugs in the future. I have undertaken drug counselling, which has taught me about the harmful effects of drugs. I hope to continue attending counselling in the future to ensure that I continue to get support and stay away from drugs for good.

Anything positive about your character generally – These actions are completely out of character. I am generally a compassionate, decent and hardworking person. I’ve never been charged with any crimes in the past. I have a young family and I want to be a positive role model for them.

Explain any personal circumstances at the time of the offence – At the time of the offence I was having difficulties in my marriage and I was depressed. I have since sought counselling to address these problems.

Explain any impact that the offence may have upon your life – I am worried about the impact that this charge will have on my career, as a criminal record may prevent me from continuing with my current job or getting a job in future. I also want to be a positive role model for my children and ensure that they know that drugs are harmful.

What you would like the court to do – I would like the court to impose a section 10 so that I can remain employed in my current job and focus on being a positive role model for my kids.

Remember – this is a guide only and a character reference should always be in the referee’s own words!